Liu Wai Keung v. Liu Wai Man

HCA 1106/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO 1106 OF 2011

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BETWEEN

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D E C I S I O N

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1.The Defendant seeks leave to amend her defence to raise the plea that the Plaintiff’s claim is time-barred. The Plaintiff contends that the Defendant’s plea is untenable because the Plaintiff’s claim falls within the exception in s 20(1)(b) of the Limitation Ordinance (Cap 347). That section provides that no period of limitation applies to any action by a beneficiary under a trust (and that includes implied and constructive trusts) being an action to recover from the trustee trust property in the possession of the trustee.

2.The Defendant argues that despite she is the registered owner of the property in question and so holder of the legal title, the Plaintiff is living in the property, which is therefore not in the possession of the Defendant.  I am not sure that this is a correct interpretation of the section.

3.The Defendant relies on Thorne v Heard [1894] 1 Ch 599, In re Timmis [1902] 1 Ch 176 and In re Howlett [1949] 1 Ch 767.  It is not clear that these cases support the proposition that the trustee must be in occupation or physical possession of a house before the exception in s 20(1)(b) applies.  On the contrary, the case of Thorne v Heard suggests that the power of control over the property is sufficient.  Given Miss Kei’s submission that the Defendant can bring an action to evict the Plaintiff from the property even on the basis that the Plaintiff prevails on the facts, it may well be that the Defendant is in such control of the property as to be regarded as in possession of it.

4.However, although, as at present advised, I have very considerable doubt about the Defendant’s contention, I am not so certain the plea is utterly unarguable that I should shut her out from arguing the matter in greater detail and with deeper analysis at trial, if the plea remains relevant.

5.Further, the Plaintiff is unable to point to any prejudice or adverse effect on the trial if the amendment is allowed, even though the trial is only about 6 weeks away.  The plea raises a pure point of law based on the facts relevant to the existing issues.  And although the effect of the plea, if successful, is fundamental, it does not raise any new factual issues and does not require any additional evidence to be filed to address it.

6.In these circumstances it seems to me the appropriate course is to give leave to the Defendant to amend.

Mr Jose-Antonio Maurellet, instructed by T H Koo & Associates, assigned by the Legal Aid Department, for the Plaintiff

Ms Carmen Kei, instructed by Fairbairn Catley Low & Kong, for the Defendant